Opinion
No. FA 97-329219
April 28, 2010
This court has held two hearings on this matter occurring on October 28, 2009 and January 27, 2010 on the above titled motions with discussion and decision as follows:
Plaintiff Karen E. Rourke has filed Plaintiff's Motion for Contempt Post-Judgment, dated September 9, 2009, against Defendant John A. Wilson, alleging that Mr. Wilson has failed to pay an alimony order of $50.00 per week as ordered in the divorce decree discussed below.
On January 7, 1998, the marriage of the parties was dissolved by order of the court pursuant to the terms and conditions of a separation agreement dated November 21, 1997 which was incorporated into the judgment of dissolution.
Paragraph 4.1 of the separation agreement stated in part,
The husband shall pay to the wife as maintenance and alimony the sum of $50.00 per week until the wife shall remarry, die, or cohabitate with another as set forth in C.G.S. Sec. 46b-86(b), whichever shall first occur, at which time said alimony shall cease and terminate.
Defendant's Motion to Modify Alimony Post-Judgment dated October 22, 2009 requests this court to terminate the original order requiring the defendant to pay $50.00 a week alimony to the plaintiff, including any and all payments past and present as may be due and payable on the grounds that the plaintiff was cohabiting with a Mr. Sutherland beginning on or about August 1998 through May 2001. At the time, defendant alleged he was unable to work and maintain income, such that he did not have the financial or physical ability to pay any alimony to plaintiff, and that the plaintiff had secured employment and, as such, plaintiff did not need alimony support from the defendant.
Each party has submitted a Memorandum of Law concerning their position, and the defendant has requested the equitable defense of laches be held as a defense to the plaintiff's Motion for Contempt dated September 9, 2009.
This court finds the defendant's Motion to Modify Alimony Post Judgment dated October 22, 2009 is in essence, an Objection to the plaintiff's Motion for Contempt.
Many prior hearings have been held in this case, and the court will give historical recitation of the relevant hearings held including court findings and orders with respect to arrearage on the alimony issue in question.
The parties were before Family Support Magistrate Susan S. Reynolds on May 12, 1999. Mr. Biesadecki, Support Enforcement Services Officer, presented at the hearing. On that date, he advised the court that the current child support order was $200.00 a week and there was a $50.00 a week alimony order that stopped in August 1998. The arrearage found as of that date was $4,477.00. Of the $4,477.00 arrearage, $1,700.00 was for unpaid alimony.
The next hearing before Magistrate Reynolds was held on June 16, 1999. On that date, Mr. Biesadecki again stated that the arrearage was $4,477.00 which included $1,700.00 in unpaid alimony. He again stated that the payment of alimony stopped in August 1998.
Neither party objected to this comment at the time, and plaintiff did not appeal.
Magistrate Reynolds ordered that $190.00 a week be paid as current support, and $38.00 a week be paid on the arrearage owed to the petitioner in the amount of $4,917.00, subject to credit.
No appeal was taken to this judgment.
The next hearing was held before Magistrate Reynolds on May 3, 2000. At this hearing an arrearage in child support in the amount of $5,115.00 was found. The next hearing was held before Magistrate Susan D. Baran on February 7, 2007. The issues in dispute were an arrearage owed on current support as well as medical balances for orthodontia. Alimony was not an issue at this hearing and again plaintiff did not appeal.
The next hearing held was before this court on October 28, 2009, when, Ms. Rourke testified. Ms. Rourke claimed that the defendant owed her $30,300.00 in past alimony.
She also testified that her three minor children and she lived with Mr. Sutherland beginning in August 1998 through 2001, and they were engaged.
Defendant's counsel entered as "Exhibit A," State of Connecticut, Department of Social Services, Bureau of Child Support Enforcement Arrearage Affidavit signed by Ms. Rourke on February 10, 1999, in which she claimed defendant owed her alimony of $200.00 for January 1998; $200.00 for February 1998; $200.00 for March 1998; $250.00 for April 1998; $200.00 for May 1998; $200.00 for June 1998; $250.00 for July 1998, and $200.00 for August 1998, totaling $1,700.
Plaintiff did not seek alimony in the subsequent months up to the date of the execution of the affidavit on February 10, 1999. Ms. Rourke testified that she was paying $800.00 of the $1,200.00 rental while she lived with Mr. Sutherland, along with food, his insurance and other living expenses for the household.
At the continued hearing on January 27, 2010, Mr. Wilson testified. He said that his understanding from conversations he had with Mr. Biesadecki, and from the prior Court hearings was that he was done paying alimony.
When asked by his counsel, "Did you think that you still had to pay alimony due to Ms. Rourke's living situation with Mr. Sutherland?" Mr. Wilson answered, "Absolutely not."
The parties submitted briefs as requested by the court with respect to the motions filed. Defendant's counsel has argued that the defendant paid the $1,700.00 alimony arrearage in full based upon Magistrate Reynold's judgment that a total arrearage of $4,917.00 was found, of which $1,700.00 was for alimony owed.
In addition, from the June 16, 1999 hearing until September 9, 2009, when the plaintiff filed her Motion for Contempt Post Judgment, the plaintiff did not claim that any additional alimony arrearage was due. Defendant further avers that the plaintiff did not contest statements made at the May 12, 1999 and June 16, 1999 hearings wherein Mr. Biesadecki testified that the alimony stopped in August 1998. No appeal was filed as to the past due alimony judgment entered by Magistrate Reynolds.
In a motion for contempt the plaintiff has the burden of proof on the issue of the amount due. The defendant may put forth defenses including payment was made; the inability to pay; illness or disability, and the equitable defenses of estoppel, laches, and waiver can be plead.
The respondent has the burden of proof on his defenses, and a preponderance of the evidence standard applies.
For the court to find a defendant in contempt, there must be a finding that the respondent was subject to a court order, in this case to pay alimony; that the order was valid and unambiguous, that the respondent had knowledge of the order and failed to pay the order, and that the respondent's failure to pay the order was willful.
The doctrines of res judicata and collateral estoppel protect the finality of judicial determinations, conserve the time of the court, and prevent wasteful relitigation. The doctrine of res judicata provides that a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action between the same parties or those in privity with them on the same claim. 20-4 Merrill Street Condominium Association, Inc. v. Murray, 96 Conn.App. At 616, 619 (2006).
The defense of laches has application only when there is established unreasonable, inexcusable and prejudicial delay in bringing suit. Castonguay v. Plourde, 46 Conn.App. 251, 265, 699 A.2d 226, cert. denied, 243 Conn. 931, 701 A.2d 660 (1997).
The delay is comprised of two elements: (1) a delay that was inexcusable; and (2) a delay that prejudiced the defendant.
The burden is on the party alleging laches to establish the defense. See Cummings v. Tripp, 204 Conn. 88 (1987).
A determination of laches is one of fact for the trier which cannot be made by the Appellate Court unless the subordinate facts found make such a conclusion inevitable as a matter of law.
The defense of laches, if proven, bars the party from seeking equitable relief in a case in which there has been an excusable delay that has prejudiced the opposing party. First there must have been a delay that was inexcusable and second that the delay must have prejudiced the opposing party. Fromm v. Fromm, 108 Conn.App. 376, 385 (2008).
Though both estoppel and laches require the party asserting them to demonstrate prejudice, the former involves a communication that invokes reliance, whereas the latter concerns an inexcusable lapse of a substantial period of time.
The mere lapse of time, however, "does not constitute laches unless it results in prejudice to the defendant such that the defendant is led to change his position with respect to the matter in question. Brock v. Cavanaugh, 1 Conn.App. 138, 140 (1984), citing Bozzi, 177 Conn. at 239.
Typically, the defense of laches has been upheld in instances where the plaintiff's conduct prior to the motion for modification put the defendant at a material disadvantage and or deprived the defendant of legal rights. See Fromm, 108 Conn.App. at 386. (Laches defense upheld because plaintiff's delay of more than 10 years rendered defendant unable to meet his alimony and support obligations.)
Waiver is the intentional relinquishment of a known right. Lounds v. Lounds, 41 Conn.Sup. 100 (1988).
In contrast to the doctrines of equitable estoppel and laches, waiver does not require a showing of prejudice or detriment on the part of the other party. Stranko v. Stranko, WL 450, 471 (Conn.Supp. 202).
In the instant case, Ms. Rourke delayed filing a motion for contempt more than 10 years since executing the Arrearage Affidavit on February 10, 1999. This delay was inexcusable and is a financial detriment to the defendant since the plaintiff is now seeking payment of $30,300.00 in alimony. Plaintiff testified that her cohabitation with Mr. Sutherland began on or about August 1998. Plaintiff did not claim that any alimony had accrued after September 1998 until the filing of her Motion for Contempt Post Judgment on September 9, 2009. Since August 1998 and as indicated above, the parties have been involved in numerous court proceedings dealing with financial issues.
Despite having ample opportunity to file a motion for contempt for alleged unpaid alimony, the plaintiff chose not to pursue said claim during the ten-year period. Plaintiff's sworn Alimony Arrearage Affidavit signed on February 10, 1999 did not claim that any alimony was due beyond September 1998. Plaintiff's claim that alimony is now due after ten years of inaction is unreasonable and inexcusable.
In addition, during the May 12, 1999 and June 16, 1999 hearings, Magistrate Reynolds was advised that the alimony stopped in August 1998 and the plaintiff did not object to the statement by Mr. Biesadecki, and she did not file an appeal. Due to the plaintiff's lack of action, the defendant was led to believe that his obligation to pay alimony had terminated. The defendant did not believe that he needed a court order to terminate an alleged alimony obligation.
It would be inequitable for the defendant to be found in contempt for an alleged failure to pay $30,300.00 alimony now in 2010. Wherefore this court orders as follows:
(1) Plaintiff's Motion for Contempt Post Judgment dated September 9, 2009 is denied.
(2) The $1,700.00 alimony arrearage found by Magistrate Reynolds was a final judgment which plaintiff had not timely appealed, and under res judicata and collateral estoppel plaintiff is barred from seeking additional past, present or future alimony.
(3) The $1,700.00 alimony judgment has been paid by the defendant.
(4) Each party is to pay his or her own attorney fees and costs.